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No exit strategy for special prosecutors

The free rein given investigations of public officials allows them to continue without deadlines or focus.

By ANITA KUMAR
Published November 3, 2005

[Getty Images]

Special Prosecutor Patrick Fitzgerald says his two-year inquiry into a CIA leak has taken so long because he waged a First Amendment battle to gain reporters' testimony. Last week he announced the indictment of the vice president's chief of staff on perjury charges.
Free from influence; not free to taxpayers WHAT YOU PAYThe cost to taxpayers for investigations of public officals:
Whitewater: $59-million

Ron Brown: $2.8-million

Waco raid: $11.8-million

Valerie Plame case: $724,041

DO YOU RECALL ...

[AP photo, 1987]

Iran-Contra: The investigation of Oliver North and illegal sales to Iran while Reagan was president took nine years.

[AP photo, 1996]

Whitewater: The inquiry into a failed Arkansas land deal spanned a decade and branched into President Clinton's sex life.

[AP photo, 1995]

HENRY CISNEROS: An investigation that began with Henry Cisneros' admission he supported a mistress is 10 years old.

WASHINGTON - When Henry Cisneros was tapped by President Bill Clinton to be the nation's housing chief, he admitted to FBI agents that he financially supported a mistress. But some accused him of understating the payments and urging his aides to lie for him.

After lawyer David Barrett was named as independent counsel to investigate, Cisneros pleaded guilty to a misdemeanor and paid a fine. Clinton later pardoned him.

But a decade after the inquiry began, Barrett continues to investigate.

As an independent counsel, he wields enormous authority and autonomy and refuses to close the case despite attempts by lawmakers and judges to get him to do so. So far, the investigation of Cisneros has cost taxpayers more than $21-million.

The goal of investigations into public officials is to keep them free of conflicts of interest and safe from political influence, which is why federal inquiries are handled by either independent counsels or special prosecutors. But insulating these offices from most accountability also allows the investigations to drag on for years and cost millions of dollars before they conclude. While some lead to convictions, others never do.

As Special Prosecutor Patrick Fitzgerald continues his two-year inquiry into whether the Bush White House outed a CIA operative, the debate over the need for these investigations has begun afresh.

There's a delicate balancing act for the government and the public, who must weigh the need for an impartial investigator and the time and money given to them to do a job that may or may not have a satisfying ending.

"You don't want these cases to act like the Energizer bunnies that keep going and going," said Keith Ashdown, vice president of Taxpayers for Common Sense, a Washington watchdog group. "You want to make sure they have an exit strategy."

Since 1993, when the General Accountability Office began doing regular audits, at least 12 investigations have been conducted at a cost of about $160-million.

The probe of illegal arms sales to Iran took nine years and cost more than $7-million. The inquiry into illegal gifts to Agriculture Secretary Mike Espy lasted eight years and cost more than $21-million. The Whitewater investigation spanned a decade, ending last year - almost four years after Clinton left office - at a cost of $59-million.

All three cases led to indictments. But some of them did not result in convictions while others were later overturned or pardoned.

Legal experts, including former federal prosecutors, say there are many legitimate reasons why high-profile, white-collar cases drag on for years.

Prosecutors start from scratch when they are appointed, opening new offices and hiring new staff. Investigators must consider hundreds of thousands of pages of documents and potential tips. Virtually every witness hires lawyers to haggle over their testimony and role. Suspects attempt to throw prosecutors off track or lead them onto another investigation.

The Whitewater inquiry, for example, started out as a examination of a failed Arkansas land deal but led to probes of the suicide of Vincent Foster, the firing of the White House travel office staff and the affair between Clinton and intern Monica Lewinsky.

"Those appointments can take on lives of their own," said Michael Siegel, a law professor at the University of Florida who worked as a federal prosecutor. "It's always inevitable when you investigate something hard enough and long enough you can find something. ... It can get out of control."

Fitzgerald said last week the CIA leak case took longer than he expected - perhaps an extra year - because he waged a First Amendment battle with media companies to force three reporters to cooperate and testify.

"There's so much behind the scenes maneuvering," said John Fitzgibbons, a Tampa criminal defense attorney and former federal prosecutor. "You just don't know."

Special prosecutors, who have been around in some form or another for more than a century, are usually appointed by the Justice Department from among their staff. But independent counsels - who are appointed by a three-judge panel selected by the chief justice of the United States and are essentially left alone - came about in 1978 after President Richard Nixon ordered the firing of a Watergate special prosecutor who was appointed by his own attorney general.

Special prosecutors are accountable to the attorney general and ultimately the president. By comparison, independent counsels must submit regular reports to the three-judge panel and later a full report when the case is over. In fact, the final report is itself another reason why independent counsel investigations can take years to complete: Every person named in the final report, no matter the reason, gets a draft to review and may request changes in how his or her role is described.

The independent counsel law was repeatedly renewed and survived a Supreme Court challenge from opponents who complained the independent counsel created an unaccountable, fourth branch of government.

"It's worth it," said Edward Page, a Tampa lawyer who worked on both the Whitewater and Cisneros cases. "You may not like the cost. You may not like the result, but at least the issue gets scrubbed."

But in 1999, after both Republicans and Democrats suffered through bruising investigations into Iran-Contra and Whitewater, Congress let the law expire.

Lanny Davis, a lawyer who worked in the Clinton White House during several investigations, said some cases can get out of control. "Prosecutors without accountability who have nothing better to do are capable of gross abusive behavior," he said.

Some legal experts argue special prosecutors are more effective than independent counsels because they have another job back home and are truly accountable to someone: the Justice Department. (Fitzgerald was exempt from notifying the attorney general in advance of major prosecutorial decisions.) Others say independent counsels are the only ones that are truly independent from the potential for political mischief.

All of them worry that in some cases investigators can get carried away.

"There is a real tendency to feel that they had to indict someone, prosecute something," said Randall Eliason, a former federal prosecutor in Washington who handled public corruption and government fraud cases.

In recent months, Barrett, the only remaining independent counsel, has been criticized by members of both parties for keeping the Cisneros case alive years after his target was found guilty. Barrett had expanded his investigation to examine accusations that a Internal Revenue Service audit into Cisneros' payments to his mistress was hampered.

But last week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ordered Barrett to end his inquiry.

"The substantive duties of the independent counsel are complete," Judge David B. Sentelle said in the order.

Barrett faxed out a statement in October defending his actions after the most recent six-month audit.

Barrett has said he is near the end of his case, something he has been saying since 2003, and now expects to close his office next year.

"There's no explanation for what happened to Cisneros," said Jonathan Turley, a law professor at George Washington University. "None of us can figure out what's going on there."